BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

Neighbours at War reported on a dispute between the complainant and his neighbour over who was entitled to the letterbox number '1' on their street. The complainant did not take part in the programme, and his neighbour made a number of allegations against him, including that he had sex on his deck, mowed the lawn in his underwear, watched his neighbours in their spa bath, and disturbed them with loud music and security lights. The broadcaster upheld two aspects of his fairness and privacy complaints, but the Authority found that the action taken by the broadcaster to remedy the breaches was insufficient. The programme overall painted the complainant in a very unfavourable light and without his side of the story, which was unfair. The Authority considered publication of this decision was sufficient and did not make any order.

Upheld: Fairness (Action Taken), Privacy (Action Taken), Fairness

Not Upheld: Privacy, Accuracy, Controversial Issues, Discrimination and Denigration, Responsible Programming, Good Taste and Decency

No Order

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Introduction

[1]  An episode of Neighbours at War, a reality TV series involving conflict between neighbours, reported on a dispute between the complainant, Ken Noble, and his neighbour over who was entitled to the letterbox number '1' on their street. The complainant did not take part in the programme, and his neighbour made a number of allegations against him, including that he had sex on his deck, mowed the lawn in his underwear, watched his neighbours in their spa bath, and disturbed them with loud music and security lights. The episode was broadcast on TV2 on 18 March 2014.

[2]  Mr Noble complained that the programme breached standards relating to privacy, fairness, accuracy, good taste and decency, discrimination and denigration, and responsible programming.

[3]  Television New Zealand Ltd (TVNZ) upheld the fairness and privacy complaints in regard to the comments about Mr Noble 'having sex on his deck' and being labelled an 'arsehole'. In its decision, it apologised to the complainant and provided an apology from the production company. The broadcaster declined to uphold all other aspects of the complaint, including other aspects of fairness and privacy.

[4]  Mr Noble referred his complaint to this Authority on the basis the action taken by the broadcaster, having upheld only a small part of his fairness and privacy complaints, was inadequate. He also maintained that the broadcast was inaccurate, unbalanced, irresponsible, and in bad taste, and denigrated him.

[5]  The issues therefore are whether the action taken by the broadcaster having upheld part of the fairness and privacy complaints was sufficient, and whether the broadcast otherwise breached the fairness, privacy, accuracy, balance, discrimination and denigration, responsible programming, and good taste and decency standards, of the Free-to-Air Television Code of Broadcasting Practice.

[6]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the complainant treated unfairly?

[7]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹

[8]  The complainant's fairness concerns go beyond the allegations that he had 'sex on his deck' and was an 'arsehole', though these were the only aspects of the Standard 6 complaint upheld by the broadcaster. Mr Noble was concerned about the other allegations made against him, and specifically, that he purposefully disturbed his neighbours with loud music and security lights, mowed his lawn in his underwear, peered over the fence at his neighbours in their spa pool, yelled at the top of his lungs that he was 'king of the street', and obtained rights to his street address because he had a friend at the council. In his referral, Mr Noble said the programme 'slandered' his family name with 'lies and untruths'.

[9]  In our view, the unfairness to the complainant was not limited to his neighbours' allegations they witnessed him 'having sex on his deck' and that he was an 'arsehole', but was littered throughout the broadcast. It was the overall impression left with viewers that was likely to cause significant damage to Mr Noble's reputation and dignity. A combination of factors resulted in the complainant being treated unfairly. The allegations were derogatory and allegedly untrue, and the programme essentially ridiculed and belittled the complainant. This was potentially humiliating for the complainant and overall he was portrayed in a very unfavourable light. He said the false allegations had negatively affected his personal and business relationships.

[10]  The unfair treatment was compounded because only one side of the story was presented. While Mr Noble declined an invitation to take part in the programme, this did not excuse the allegations made against him. People are entitled to go about their daily affairs without being exposed to the glare of publicity, and naturally they may not wish to comment publicly on national television about disagreements involving their neighbours. In our opinion, there is something fundamentally unfair in broadcasting personal accusations against an identifiable individual where they do not wish to take part in the programme. While we recognise there could be a level of public interest in a programme that provides a forum for resolving disputes, there was no value in the derogatory comments made about the complainant or in identifying him. The broadcaster should consider these issues in assessing whether any particular episode of Neighbours at War complies with broadcasting standards and specifically the requirement to treat those taking part and referred to fairly. The programme is less likely to breach standards where both parties to the dispute willingly participate, or where the non-participating party is anonymised.

[11]  For these reasons, we find that the programme as a whole was unfair to the Mr Noble, and we uphold this part of the complaint.

Was the action taken by the broadcaster, having upheld parts of the fairness and privacy complaints, sufficient?

[12]  As noted above, the broadcaster only upheld a small part of the fairness and privacy complaints, relating to the comments about Mr Noble 'having sex on his deck' and being known to be an 'arsehole'. We have found above that the unfairness to the complainant went further than this.

[13]  Our task, in assessing this part of the complaint, is to determine whether the action taken by TVNZ, in regard to upholding the complaint about the 'sex on the deck' and 'arsehole' comments, was sufficient. Leaving aside the other fairness issues, we do not think that the action taken in regard to these comments was sufficient.

[14]  Having upheld this small part of the fairness and privacy complaints, the broadcaster apologised to the complainant in its decision, and provided a written apology from the production company (incorporated into its decision) as follows:

[The production company] extends our sincere apologies to you concerning the Neighbours at War episode which screened on 18 March 2014.

We acknowledge that the episode contained allegations that you felt humiliated by and we apologise for this. As the TVNZ complaint decision discusses we have undertaken to significantly alter the episode.

[15]  TVNZ said the episode had been altered to remove the complainant's first name, as well as the comments about him 'having sex on his deck' and that he was an 'arsehole'. It said the episode would no longer be considered highly offensive to an objective reasonable person. The broadcaster maintained that Mr Noble's address would remain in the programme as it 'is central to a discussion about the dispute' and was in the public domain.

[16]  In his referral, the complainant asked for an on-air apology. TVNZ considered that this would 'only serve to re-broadcast elements that were unacceptable' and the programme was currently off-air.

[17]  In our view, the unfairness to the complainant, and specifically the unfairness stemming from the comments about him 'having sex on his deck' and being an 'arsehole', was the result of his identification in the broadcast. Identification was also a pre-requisite for the broadcaster finding a breach of his privacy. The editing of the episode, as outlined by TVNZ, was not sufficient to anonymise the complainant because his address was still central to the story and the footage of his house remained. In this respect, the action taken by the broadcaster in regard to its uphold was inadequate. The episode will most likely be repeated and the complainant will again be identifiable and will continue to suffer harm as a result. Given the nature of the dispute between Mr Noble and his neighbour, in that it centres around their street addresses, we do not see how it can be re-broadcast without identifying the complainant and causing further harm to his reputation and dignity. We would expect an undertaking from the broadcaster that this episode will not screen again.

[18]  Accordingly, we uphold the complaint that the action taken by TVNZ was insufficient.

Was the complainant's privacy breached?

[19]  Like fairness, the privacy complaint was broader than the allegation Mr Noble had 'sex on his deck'. The complainant argued that filming his property without his consent and broadcasting false claims about him breached his privacy.

[20]  In order for the privacy standard to apply, the person whose privacy has allegedly been interfered with must be identifiable in the broadcast. TVNZ accepted that Mr Noble was identifiable as his first name was used and his address was disclosed.

[21]  Privacy principle 1 of the Authority's Privacy Principles provides that it is inconsistent with an individual's privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person. Private facts, for the purposes of the principle, are usually things which a person would reasonably expect to remain private, as opposed to information that is on public record or in the public domain.²

[22]  In terms of the filming of the complainant's property, we note that it occurred from a public road, and simply captured footage that was visible to the public. It did not reveal anything private about the complainant. The identification of the complainant through disclosing his address and footage of his house has been adequately dealt with in our consideration of fairness.

[23]  Turning to the information revealed about Mr Noble (in addition to the claim he had 'sex on his deck'), we find that this did not amount to private facts for the purposes of privacy principle 1. The allegations he purposefully disturbed his neighbours with loud music and security lights, mowed his lawn in his underwear, peered over the fence at his neighbours in their spa pool, yelled at the top of his lungs that he was 'king of the street', was known throughout the neighbourhood as an 'arsehole', and obtained rights to his street address because he had a friend at the council, related to alleged conduct that either occurred within view of the public or which involved other people, and so even if true (which the complainant disputes), it was not information in which Mr Noble had a reasonable expectation of privacy.

[24]  For these reasons, we decline to uphold the privacy complaint. We think that in general the complainant's concerns about privacy are better addressed as matters of fairness, and we have done so above.

Do the accuracy and controversial issues standards apply?

[25]  The accuracy (Standard 5) and controversial issues (Standard 4) standards only apply to news, current affairs and factual programming. Both standards are concerned with preventing harm to the audience, as opposed to harm to individuals referred to, or taking part, in programmes.

[26]  Neighbours At War is not a news or current affairs programme, and therefore we must decide whether the programme falls within the definition of a 'factual programme'. The Authority has defined 'factual programmes' as being 'those which present themselves, and are reasonably understood by the audience, to be authoritative sources of information'. The 'important criterion is whether a reasonable viewer or listener is entitled to expect that the information given in the programme will be truthful and authoritative, and not just opinion or hyperbole.'³

[27]  The divide between reality TV and factual programmes is becoming increasingly blurred with a rapid increase in these types of programmes. No clear line can be drawn, and each broadcast needs to be assessed on its own merits. Neighbours At War is a series which focuses on neighbourhood disputes. It is inherently opinion-based, presented from the perspectives of those involved in the disputes. The participants are not presented as being authoritative sources of information, and the audience would understand that they are presenting their stories, from their own perspectives, coloured by the dispute.

[28]  Accordingly, we conclude that Neighbours At War was not a factual programme to which the accuracy or controversial issues standards applied, and we decline to uphold these parts of the complaint.

Did the broadcast breach the other standards raised in the complaint?

[29]  As noted above, the complainant also referred his complaint under the good taste and decency, responsible programming, and discrimination and denigration standards. In summary, these are not applicable or were not breached because:

• the programme did not contain sexual material, nudity, violence or coarse language as envisaged by the standard, or anything that would have offended or distressed the general audience (Standard 1)
• the discrimination and denigration standard applies to sections of the community, not individuals or the local council (Standard 7)
• Neighbours at War was appropriately classified PGR and preceded by a verbal and visual warning for 'material that may not be suitable for a younger audience' and recommending parental supervision; it did not contain anything that deceived or disadvantaged viewers (Standard 8).

[30]  Accordingly, we decline to uphold the complaint that these standards were breached.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Neighbours At War on 18 March 2014 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

The Authority also upholds the complaint that the action taken by the broadcaster having upheld part of the complaints under Standards 3 and 6 was insufficient.

[31]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

[32]  Mr Noble submitted that the broadcaster should be ordered to publish a statement in the local newspaper mentioning the name, date and time of the programme. He said that he ran a business which operated throughout New Zealand and was well-known, and on this basis, he asked for a broadcast statement including an apology.

[33]  TVNZ did not consider that a broadcast apology was in the complainant's best interests because it would draw further attention to the broadcast. It said it had taken the Authority's advice on board regarding the wider breach of the fairness standard and that the decision would be used to reinforce broadcasting standards requirements relating to fairness. The broadcaster gave an undertaking not to repeat the episode in any form and asked that the Authority recognise the substantial financial implications of this. In all the circumstances, TVNZ considered that publication of this decision would be a proportionate response given the Authority's findings and its genuine attempts to address Mr Noble's and the Authority's concerns.

Authority's Decision on Orders

[34]  Having considered the parties' submissions on orders, we are satisfied that in all the circumstances publication of our decision upholding Mr Noble's complaint is sufficient to remedy the breach. We agree with the broadcaster that a public statement may draw further attention to the initial footage in which Mr Noble was ridiculed and humiliated, as well as the damaging allegations made against him. The episode made no mention of Mr Noble's business and so the fact his business operates throughout New Zealand has no bearing on our decision on orders.

[35]  We have carefully considered whether to exercise our powers to order costs to the Crown. Costs to the Crown are usually ordered to mark a significant departure from broadcasting standards. While we have found that the breaches of the fairness and privacy standards were serious, we have taken into account that TVNZ upheld the complaint and has demonstrated an understanding of our findings around the broader fairness breach. It has indicated that our advice in this regard has been taken on board and used to reinforce its obligations to treat participants fairly. Importantly, the broadcaster has undertaken not to repeat the episode in any form. This is the best possible outcome for the complainant and we therefore see no reason to impose further penalty on the broadcaster.

Signed for and on behalf of the Authority

Peter Radich
Chair
5 February 2015

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1     Ken Noble's direct privacy complaint – 20 March 2014
2     Mr Noble's formal complaint to TVNZ – 24 March 2014
3     TVNZ's response to the complaints – 20 May 2014
4     Mr Noble's referral to the Authority – 24 May 2014
5     TVNZ's response to the Authority – 30 July 2014
6     Mr Noble's submissions on orders – 4 November 2014
7     TVNZ's submissions on orders – 14 November 2014

¹ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

² Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)

³Accident Compensation Corporation and Television New Zealand Ltd, Decision No. 2006-126